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In re K.C.

Supreme Court of Montana

July 3, 2018

IN THE MATTER OF: K.C., A Youth in Need of Care.

          Submitted on Briefs: May 9, 2018

          APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause No. DN-16-91-BN Honorable Brad Newman, Presiding Judge.

          For Appellant: Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana

          For Appellee: Timothy C. Fox., Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana Mark Vucurovich, Henningsen, Vucurovich & Richardson, PC, Butte, Montana


          Mike McGrath Chief Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Father is the biological father of four-year-old K.C. In 2016, Father and K.C. were living in Butte, Montana. On November 6, 2016, Father was arrested for Partner Family Member Assault after he had smashed a car windshield with K.C. inside. Father subsequently spent seven days incarcerated.[1] The Department of Health and Human Services (Department) received a report regarding Father's arrest and unsuccessfully attempted to contact Father.

         ¶3 On December 9, 2016, the Department received a report that Father was arrested for criminal mischief. The Department located K.C. with K.C.'s paternal aunt. Child protection specialist Cassandra Olson (CPS Olson) visited Father in the Butte Detention Center to notify him that the Department would be taking legal action regarding K.C. Father became irate and started pacing and yelling; detention center personnel had to remove him. Father appeared at Department offices on December 9, 2016, admitted to needing help to care for K.C., submitted to a urine analysis test (UA), and agreed to sign up for anger management classes. The Department made referrals for a mental health evaluation and a chemical dependency evaluation on December 12, 2016.

         ¶4 On December 14, 2016, the Department filed a petition for Emergency Protective Services, Adjudication as Youth in Need of Care (YINC) and Temporary Legal Custody (TLC), and supporting affidavits. In the affidavit, the Department reported that Father was willing to work with the Department towards reunification with his son, recounted Father's arrest, and the Department's four-year involvement with Father and K.C. A Guardian Ad Litem (GAL) was appointed to represent K.C.'s best interests.

         ¶5 The District Court held a show cause hearing on January 25, 2017, at which Father appeared with counsel. The District Court heard testimony from Olson, Father, and K.C.'s Mother. CPS Olson testified to the Department's concerns that Father placed K.C. at unreasonable risk of physical and psychological harm based on the unsafe living conditions, domestic violence, Father's arrests, and drug use. Father visited K.C. twice, once in January and once in February 2017. The District Court found that K.C. was a YINC and granted TLC to the Department for six months. It ordered the Department to develop appropriate treatment plans for both parents and continue to provide services to Father.

         ¶6 The District Court held a hearing on the proposed treatment plans on February 22, 2017. Father was not present, but was represented by counsel. The parties stipulated to needing more time to complete the treatment plans and Mother filed a motion to continue. On March 15, 2017, the District Court held a second hearing on the proposed treatment plans. Father was not present, but was represented by counsel, who informed the District Court that she did not currently know where to find Father; he had not signed the treatment plan, or contacted his attorney. Father had not visited his son since February 1.

         ¶7 CPS Olson testified to the proposed treatment plan, which required Father to obtain safe and stable housing, maintain communication with the Department, complete a parenting class, visit K.C. on a regular basis, obtain a chemical dependency evaluation, submit to UA testing, and obtain a psychological evaluation and follow through with any recommendations. CPS Olson testified that Father had enrolled in anger management, but had since stopped attending. The GAL supported the Department's proposed treatment plan while expressing concern that based on Father's history with the Department, he would be unable to ensure the emotional and physical welfare of K.C. The District Court approved the treatment plan. The treatment plan for Father was served on his attorney.

         ¶8 Father contacted the Department on June 12, 2017, and attended the foster care review meeting on June 13. The Department set up a visit for June 14. Father refused to attend. Father sent a letter to the District Court on June 23, 2017, requesting substitution of counsel with a "male Christian" attorney. In the letter, Father included an address in Spokane, Washington. The District Court denied the request, and a copy of the order was sent to Father's attorney.

         ¶9 The Department filed a motion to continue TLC on July 7, 2017, which the District Court granted. On August 2, 2017, the Department filed a petition to extend temporary legal custody and a petition for permanent legal custody, termination of Father's parental rights with right to consent to adoption, and request for a hearing, each with a supporting affidavit. The affidavit, written by CPS Olson, asserted Father's parental rights should be terminated because Father had not been successful in his treatment plan, had not completed a mental health evaluation, failed to take or complete the parenting class, failed to obtain safe and stable housing, failed to visit K.C. regularly, and failed to stay in contact with the Department between January and June 2016. While Father attended the Foster Care Review meeting on June 13, he did not contact the Department again. The Department asserted Father had not provided emotional, financial, housing or any other support for K.C. in over six months. The affidavit listed the efforts the Department took ...

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